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Today we are pleased to republish a piece from Tabitha Messick about her experiences as a 2012 Digital Media Law Project Summer Intern; this post was originally published by the DMLP's founder, David Ardia, on his blog at the UNC Center for Media Law & Policy. Thanks to both David and Tabitha for allowing us to run this post!

My 2L summer at the Digital Media Law Project (DMLP) at the Berkman Center for Internet & Society
(based at Harvard University in Cambridge, MA) was simply amazing. I’ve
known about the Berkman Center for years, and have frequently used the
resources at DMLP (formerly the Citizen Media Law Project). I would have
never imagined that I would have the opportunity to work there.

A federal judge's ruling that a blogger was not covered by Oregon's reporters' shield law is being appealed to the Ninth Circuit,
and is getting some amicus support from media organizations. But the
appeal -- and the amici -- are not addressing the main issue that led to
an online uproar over the trial judge's initial decision.

Both
the Reporters Committee for Freedom of the Press (where I once worked)
and Scotusblog.com, a site that covers U.S. Supreme Court cases in
intimate detail, have filed amicus briefs in the case, concerned that
the courts not define "media" and "journalist" in such a way that
bloggers are not categorically denied coverage by state reporters'
shield laws.
read more »

Today, the Digital Media Law
Project is launching a new guide to photography and filming at this year’s presidential
election, Documenting the Vote 2012. This resource provides a wide range of
information for all fifty states plus the District of Columbia, regarding laws
that restrict the use of cameras in and around polling places (as well as other
journalistic activities).

One particular type of law,
common to many states, is worthy of particular note. As reflected in our new
guide, many states have statutes that prohibit the display of one’s own marked
ballot to others. A small number of these states only prohibit disclosure of
one’s ballot in the voting room or prior to submission of the ballot, but most impose
a flat prohibition on disclosure backed up by criminal penalties or
cancellation of the vote in question. These statutes by their explicit terms appear
to ban sharing of a photograph of one’s ballot even after the election is over.

Now, we can debate the wisdom of
a voter openly declaring the candidate for whom he or she voted. There are
sound reasons for a person to keep his or her ultimate selection secret,
whether to prevent intimidation at the polling place or retribution by
employers or others after the fact. It is easy to imagine situations in which
the thoughtless posting of a marked ballot on Facebook could result in negative
consequences, as with the posting of so many other ill-advised Facebook photos.

And yet, the First Amendment’s
protection is at its peak in the realm of speech on political issues. Can a law prohibiting a voter from disclosing
his or her own marked ballot be constitutional?

On October 16, the Union des Étudiants Juifs Français (Union of French Jewish Students, UEJF) asked Twitter to remove several racist and anti-Semitic tweets. Using the hashtags #unbonjuif and #unbonmusulman ("agoodjew" and "agoodmuslim," respectively), some Twitter users were posting derogatory comments about Jews and Muslims, some allegedly meant to be 'jokes.'

The UEJF president, Jonathan Hayoun, and the UEJF legal representatives had a conference call with Twitter's senior management, in which the UEJF asked Twitter to remove the tweets in question. Twitter initially had refused to delete them, and had also refused to provide the UEJF with the identities of the users.

But on October 28, the UEJF announced that Twitter had started removing the anti-Semitic tweets. It is not yet clear whether Twitter also provided the identities of the authors of the tweets, but it is unlikely it would do so without an order from a French court.
read more »

A survey of jurors from 15 trials
has found that jurors generally understand instructions not to use the
Internet or social media to research or communicate about trials, but
also that many jurors wish they could use technology to do some sort of
research about the cases they sat on. Very few, however, reported that
they had violated admonishments not to research or discuss the case with
others prior to deliberations, and all of these involved
pre-deliberation discussions with either fellow jurors or family
members. None involved the internet or social media.

When using Pinterest (and Flickr and YouTube and Facebook
and on and on), what copyright, fair use, trademark and other issues
weigh on building communities and corporate use of fan pages and social media generally?
A hypothetical “Company” has plans for its Pinterest “community”, and
in particular, wonders about these situations:

Using Images of Identifiable People

Fair Use and Images

Trademarks: When is a “Fair Use” Argument Strongest?

Why Attribution and Linking to Original Sources is Important

3 introductory questions:

Question #1: Someone used to be a paid Company
sponsor or spokesperson. They are no longer. Can the Company continue
to post a photo of the old sponsor to Pinterest? Short Answer:
If the contract with the sponsor expressly permits it, yes.
Ordinarily, the contract would specify engagement for limited time, and
that would prohibit rights to use images beyond the contract period.
But it really depends on what the contract says.

Question #2: Can the Company post a photo of a fan of the Company? Short Answer:
Express consent is required, either through a release or the fan’s
agreement (whenever the photo is submitted) to terms of service.
Exceptions are discussed below.

Question #3: Can the Company post a photo of a Coca-Cola bottle on its Pinterest page? Short Answer: If the use of the image does not suggest (implicitly or explicitly) endorsement or association, then yes.read more »

For more background you can visit our earlierreleases about the case, but in quick summary: the case concerns Long Bow, a documentary film company that released a film concerning the Tienanmen Square protests.
The film is
critical of many of the student leaders, including a protester named Ling Chai. The film company created a website related to the
film, which, among other things, criticized Chai on a particular webpage. As Chai had since moved to Boston and co-founded an educational software company called Jenzabar, the page was titled "Jenzabar," and included terms related to Jenzabar in
the metadata.
read more »

On September 14, French weekly gossip magazine Closer published several pictures of the Duke and Duchess of Cambridge taken without their consent while they were spending a weekend at a private villa in the South of France. Some of the pictures showed the Duchess wearing only the bottom of a bikini suit. France may have a liberal attitude towards female nudity and half-naked women are routinely seen sunbathing on its beaches, but it also has strong privacy laws, including the court-created droit à l’image -- the right to the privacy in one’s image.

French Law Protects the Privacy of Public Figures, including Princesses

Article 9 of the French civil Code provides that “[e]veryone has the right to respect for his private life.” This is not merely an aspirational statement, but an enforceable right, as Article 9 gives courts the power to prescribe any measures appropriate to prevent or to end an invasion of personal privacy. In case of emergency, those measures may even be provided for by interim order.

Even though Article 9 does not specifically mention a right over one’s image, the French courts have interpreted it as giving individuals a droit à l’image. What is protected is not the image itself, but a person’s right not be photographed without her consent. Article 9 provides protection regardless of whether the person is famous, or even royalty.
read more »

In the Tip O'Neill spirit of all politics being local, here's an interesting trademark story from right down the road from our office:

Anyone who went to college in Boston over the past decade probably knows Boloco, a local wraps-and-smoothies chain with locations at or near most of the colleges in the metro-Boston area, with scattered other locations at other college towns in New England. Among the shakes and smoothies that Boloco sells is a "Nutella Milkshake," made with Nutella, skim milk, and frozen yogurt. The picture included with this post is taken at Boloco's Harvard Square location, and shows how Boloco advertises the shake on their menu board. (And yes, it is as delicious as it sounds.)

Boloco CEO John Pepper sent a Tweet yesterday saying, "After 14 yrs as their faithful advocate, Nutella's lawyers
have sent us an immediate cease & desist on the use of their name." According to subsequent reporting by the Boston Herald, the dispute appears to be over the use of the word "Nutella" in the name of the milkshake, because, according to Pepper, "[t]hey don’t endorse the use of Nutella or the Nutella brand in frozen beverages." Nutella says that Boloco can continue using the product, but cannot use the name.
read more »

A doctor in New York and a dentist in Oregon have both found out that
it may not be easy to sue for libel over online reviews of their
services, after their separate lawsuits were both dismissed. And it turns out that most of the dentists and doctors who have sued over online reviews have reached similar results.

In the New York case, doctor Trilby J. Tener sued over a comment posted to the physician review website vitals.com.
The comment, posted April 12, 2009, stated that "Dr. Tener is a
terrible doctor. She is mentally unstable and has poor skills. Stay far
away!!!"

Dr. Tener discovered the comment when she did a
Google search for herself on May 28, 2009. But she did not file suit
until April 8, 2010, four days before the expiration of the one-year
statute of limitations (running from the day when the statement was
initially posted). She then attempted to amend the complaint on June 8,
2010 to change the named defendant, claiming that it took that long to
determine who was responsible for the posting.
read more »

Being a journalist in Italy may have occupational hazards, but having to go to prison in your own country because of an article you wrote should not be one of them. However, Italy, a founding Member of both the Council of Europe and the European Union, still punishes defamation through the medium of the press (diffamazione a mezzo stampa) by a prison term.

The penalties are harsh: article 595 of the Italian Penal Code punishes such crimes by six months up to three years in prison, or by a fine which cannot be less than €516 (more or less $675). The penalties are increased if the victim is a political figure, a concept that might surprise United States journalists who generally receive greater protection against defamation liability when writing about politicians.

Three Recent Cases

The law is alive and well enforced. An article written by journalist Orfeo Donatini, titled “Pura razza SüdTirol” (The pure race of South Tyrol), was published in 2008 by the newspaper Alto Adige. It reported that Seven Knoll, a Representative at the Parliament of South Tyrol and the leader of Süd-Tiroler Freiheit, a South Tyrol separatist party, was being investigated by the police for his possible ties with neo-Nazi groups. The source of the information, which had first been published by the national weekly L’Espresso, was a confidential police report.
read more »

Google searches employ two features: autocomplete and Google instant. These work together to complete your search terms and to automatically load search results while you're typing. While you're probably thankful for the few seconds this saves, or the way it triggers a connection you couldn't recall, Bettina Wulff (wife of former German President Christian Wulff) would be unlikely to agree with you these days. Type Wulff's name into Google, and the first autocomplete suggestions you'll see are "Bettina Wulff escort," and "Bettina Wulff prostituierte." Wulff is now suing Google for defamation, along with German TV host Günther Jauch and over 30 bloggers and media outlets. Wulff's suit against Google focuses on the results of this autocomplete feature.
read more »

Cell phones allow us not only to communicate with one another, but also to take and store pictures, “check in” from a location, balance our checking account, and even update our blogs. When the content of a cell phone may help the police to solve a crime, the legality of the search of both the phone and its content is of crucial importance. However, the law of warrantless searches of cell phones is not yet settled.

A recent 190-page decision from Rhode Island Superior Court Justice Judith Savage in State of Rhode Island v. Patino, C.A. No.: P1-10-1155A, weighs in on the debate. The facts in this case are very sad; here is a quick summary. A 6-year-old died, possibly from abuse. Four cell phones are observed by the police at the scene. The police seized and searched them. One belonged to the mother of the victim, and at least two others belonged to the Defendant. Was the search legal?

Facts of the case

On October 4, 2009, the Cranston Police Department was called by Trisha Oliver, the mother of 6-year old Marco Nieves, who was unresponsive and not breathing. He was taken to the hospital, while Sergeant Michael Kite went to Oliver's apartment. He met there Michael Patino, Oliver’s boyfriend and the father of her infant daughter. Sergeant Kite observed four cell phones in the apartment: a LG Verizon, a Metro PCS Kyocera, a black T-Mobile Sidekick, and an iPhone.

At one point during his visit, it seems that Sergeant Kite picked up the LG Verizon cell phone because it beeped, and he may have viewed a “sent” message addressed to “DaMaster.” The message read as follows:

Wat if I got 2 take him 2 da hospital wat do I say and dos marks on his neck omg.
read more »

Today's post is a continuation of my analysis of the laws implicated by the recording of Mitt Romney's remarks at a
fundraiser held at a private home in Boca Raton, Florida, on May 17,
2012. Part One identified these laws, including the Federal Wiretap Act, Florida's own wiretap law, and Florida's common law protection against "intrusion upon seclusion," and discussed the issue of consent under each law.

I will look at the underlying issue of whether anyone present at the fundraiser had a cognizable expectation of privacy. I will also examine the First Amendment issues raised by the disclosure of the recording of Romney to Mother Jones, which broke the story of the recording on September 17, 2012.

Applying the Law - Expectations of Privacy

As discussed in Part One, each of the laws potentially implicated by the Romney recording offers protection against use of an
electronic device to record a private communication. But each of these laws also requires that
there be a "reasonable expectation of privacy" in the communication or the
place in which the communication occurs; a discussion of "expectations of privacy" under each law follows.

Federal and Florida Wiretap Law

While the relevant standard of consent is different for each of the three laws at issue, two of these laws -- the Federal Wiretap Act and Florida's own wiretap law -- have been held to share the same standard for whether there is a cognizable expectation of privacy in a particular communication.
read more »

As
is now commonly known, on May 17, 2012, presidential candidate Mitt Romney made
a series of very candid comments at a private fundraiser held in the Boca Raton
home of private equity manager Marc Leder. As Mother Jones
reported on September 17, someone present at that fundraiser (we have no
idea whether it was a guest or someone working at that event) planted a video
camera in the room and captured portions of the audio and video of Romney’s
talk. I will leave the political import of this event to others (and
there has certainly been plenty of commentary), but I wanted to take a closer
look at whether the recording violated any laws and the consequences of that
determination.

As
will be discussed below, there are a patchwork of laws on this topic, but the ultimate determination will largely turn on two issues: (1) whether
there was consent to the recording that would protect the individual who made
the video against liability; and (2) whether there was a reasonable expectation
of privacy in Romney’s remarks.Part One
of this post will discuss the laws that might apply, and the question of
consent. Part Two, which will be posted tomorrow, will discuss whether Romney (or
anyone else) had a reasonable expectation of privacy in the remarks, and
certain other relevant legal issues (such as protection that Mother Jones enjoys in such situations under
the First Amendment).

It is hard to look at the international protests surrounding the Innocence of Muslims video and the contemporaneous (though seemingly unrelated) fatal attack on the U.S. Consulate in Libya and not feel as though we are witnessing an important moment in the Internet's development.

Of course, posting material online has lead to drastic, even fatal, consequences in the past. But it is hard to think of another time where a single piece of online content has brought about such an overwhelmingly serious and negative reaction. And given that the creator's initial anonymity led news reports to declare the video as coming "from the Internet," it's quite possible that this will remain a video whose origin is attributed primarily by where it was published rather than who made it. In the minds of many, this will remain an action of the Internet – and an action with very serious consequences.

This leads to a fear. We now live in a world where one person is able to cause mass chaos by posting one video. Of course, that is not what happened; the video took nearly 100 people and thousands of dollars, and the environment is especially volatile in the post-revolution countries of Libya and Egypt. (The truth is always much more nuanced.) But I suspect that the question will be asked: Can we tolerate this? Should we censor Internet speech in order to avoid the harm to others, both religious and physical? When should free speech yield to other concerns?
read more »

I am very pleased to be able to share the news that, after more than two and a half years, the nonprofit San Francisco Public Press has finally received recognition of its tax exempt status from the IRS under Section 501(c)(3) of the Internal Revenue Code.

For a while now, the Digital Media Law Project has been tracking numerous instances of journalism nonprofits delayed at the IRS in their efforts to obtain Section 501(c)(3) status. This status, among other benefits, allows a nonprofit to receive tax-deductible donations from charitable foundations and private donors. The ability to receive such donations is critical for the survival of many nonprofit organizations in their first years, and the San Francisco Public Press has had to struggle along without these donations for longer than just about anyone else stuck in the IRS process -- a whopping 32 months.

Although the IRS has not commented on the specific reasons for these delays, the agency has historically been skeptical about granting 501(c)(3) status to nonprofit journalism and publishing organizations. In the past, it has required these organizations to demonstrate that they are organized and operated for an educational or charitable purpose beyond disseminating news to the public like a traditional newspaper. (For much more information on this topic, see our guide to IRS treatment of journalism nonprofits.)
read more »

This rule occasioned much comment from the photographer community, as one might expect. The problems with the "no apparent esthetic value" standard can be boiled down to two bleedingly obvious complaints: first, the police have no business judging aesthetic value under the First Amendment; and second, even if police could competently and constitutionally take action based on artistic merit, the rule disregards the legitimacy of photojournalism and other photography that is more concerned with documentation than aesthetics.

Well, it appears that the LAPD can stop
recruiting officers with MFA degrees, but they aren't done with
urban/industrial photography quite yet.
As reported by our friend Carlos Miller, on August 28th the Los Angeles Police Commission approved revisions to the SAR policy, dropping the reference to aesthetic value. The new policy addresses photography as follows:read more »

The federal courts have revised the jury instructions released in 2010 to address jurors' use of the internet and social media. But while the revised version
is more specific about what activities jurors should avoid, they are
still inadequate. This is because they are still in the form of a
command -- "thou shalt not" -- but do not explain to jurors why they should not discuss the case or do research online.
read more »

It is with mixed emotions that the Digital (nee Citizen) Media Law Project has to announce that Arthur
Bright, our Research Attorney and Editor, will be
leaving us for a new venture. Arthur has been working with us for more than a year in his current position; prior to that, he worked with our project as a student intern. We will miss his presence and his
contributions to our project, in particular his journalistic
skills and his careful attention to international freedom of speech
issues.

Arthur received his J.D. degree from the Boston University School of Law
in 2010, his
Masters degree in Journalism from Boston University's College of
Communication in 2005 and undergraduate degrees in Astronomy and
Philosophy from Amherst College in 1998.
As readers of his regular blog entries know, Arthur brings a sharp insight and a dry subtle wit to his analysis of important topics. Not so obvious, but even more important, are the contributions Arthur has made by managing and editing the content of our site. He has been responsible for scheduling and editing virtually every post on our blog in the last year, as well as cajoling the members of our blog roll (myself included) to contribute content so that we can stick to our twice-weekly schedule. His work can also be seen in many of our legal guide pages and entries in our database of threats to online speech. And even further behind the scenes, Arthur brought technical expertise that was important to keeping us up and running.

That being the case, we're not quite sure what we'll do without Arthur, but he is moving on for the best of reasons to join the Christian Science Monitoron a full-time basis as their new Europe
editor.
read more »

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